Le Beach [2002] QBCCMCmr 149 (20 March 2002)

C G YOUNGREFERENCE: 0675-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7628
Name of Scheme:	Le Beach
Address of Scheme:	136 The Esplanade BURLEIGH HEADS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Ronald William WEST, as a co-owner of Lot 20,



C G YOUNGI hereby order that within one (1) month of the date of this order, the body corporate secretary, Robert John Arthur, must provide to Ronald William West, a co-owner of Lot 20, photocopies of the 22 pages of body corporate records flagged and indicated to Arthur by West at an inspection of records on 12 December 2000, for a total statutory cost of Eleven Dollars ($11).

I further order that the copies are to be mailed to West at his address for service recorded in the body corporate roll, at the cost of the body corporate.
2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0675-2001

“Le Beach” CTS 7628

The applicant, Ronald West of Lot 20, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“The body corporate for Le Beach give Mr R West a copy of 22 pages of records kept by the body corporate, as per s162(2)(b) of the Management Act 1997.”

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

In the supporting grounds, the applicant states that the body corporate committee, at its meeting of 17 September 2000, resolved that the respondent Arthur make available (to West) certain body corporate records previously refused him by Arthur. The minutes of that meeting read –

“19/6/00 Ref Inspection of Records. Mr Arthur to make contracts file available as per B C regulation.”

The records were subsequently made available to West on 12 December 2000. Following an inspection of the records, he flagged 22 pages, asking Arthur to supply photocopies of them and tendering a cheque for $11 in payment. Arthur stated that the fee was $71. A copy of a note completed by Arthur shows the fee to comprise –

“22 sheets @ 50c $11.00

2 hrs @ $30 ph 60.00

______

$71.00”

West insisted that the cost under the legislation was only $11 and over the next year demanded the records from Arthur, without success. He sought the assistance of the committee again, also without success.

Arthur has responded to the application by stating that the documents required all relate to his management agreement with the body corporate (including deeds of variation, assignment and extension), and that, “the validity of these contracts is a matter between the Body Corporate Solicitor and the Solicitor for R & S Arthur Nominees Pty Ltd.” He then goes on to state that West is not a member of the committee. He also contends that West is a vexatious litigant who has harassed him over two years. He views the obtaining of the documents as another means of harassment which is, “another part of his plot to force us out of this building”.

The law that bears on this dispute is quite simple. Section 162(2)(b) of the Act provides as follows–

Information to be given to interested persons.

162.(2) Within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, a body corporate must –

(a) ...

(b) (b) give the person a copy of a record kept by the body corporate.

Under subsection (5), an “interested person” includes an owner of a lot.

Section 150(1)(b) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 then states –

Fee for information given to interested persons – Act, s162

150.(1) For section 162(2) of the Act –

(a)....

(b) the prescribed fee for obtaining a copy of a record kept by the body corporate is 50c for each page supplied.

Accordingly, as West is an owner of a lot (which includes a co-owner – see “owner” in Schedule 4 Dictionary to the Act), he is entitled to inspect and obtain copies of the body corporate records. As the deeds of variation, assignment, etc., are matters of contract between the body corporate and another party, they form part of its records and therefore open to inspection by owners and other interested persons.

The documents should have been made available to West, which Arthur seems to have acknowledged on 12 December 2000, but at a cost of $11, the fee determinable by law in accordance with section 150(1)(b) of the applicable regulations. The question of the “validity of the contracts” is irrelevant to the supply of the documents, as is the fact that West is not a member of the committee.

My order for the secretary to supply the documents within a specified time, merely reflects what is clearly required by law. In view of the inappropriate delay in West being provided the documents, I have ordered that the documents are to be mailed to him at his roll address at the cost of the body corporate.

I would add that the committee, after properly supporting the applicant to secure the documents by its decision of 17 September 2000, subsequently failed in its duty to ensure that his rights were upheld by ensuring its instruction to the secretary was carried out. The ability of an owner to view any document of the body corporate is a basic right consistent with the openness of the administration of body corporate affairs by the committee. Only in the rare circumstance of privilege can a document be refused an owner and this situation does not arise here.



The respondent Arthur devotes much of his submission to the application, to allegations of harassment by West. This is a matter that Arthur should seek legal advice on to determine whether he has an action against West or not. It cannot allow him, as secretary, to refuse to accede to a lawful request by West for copies of documents, or to charge a fee in excess of what the legislation provides.2n